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DOJ Alleges Idaho Abortion Law Violates EMTALA – Healthcare

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On Aug. 2, the U.S. Department of Justice (DOJ) filed suit
against the state of Idaho to block a state abortion law set to
take effect on Aug. 25, claiming that it violates the federal
Emergency Medical Treatment and Labor Act of 1986 (EMTALA).

Under EMTALA, a hospital that receives Medicare funds must
provide treatment to patients who present to the hospital’s
emergency department with an “emergency medical
condition.” The DOJ explains that “emergency medical
conditions” under EMTALA “include not just conditions
that present risks to life but also those that place a
patient’s ‘health’ in ‘serious jeopardy’ or
risk ‘serious impairment to bodily functions’ or
‘serious dysfunction of any bodily organ or

The DOJ’s complaint targets Idaho Code § 18-622, which
would criminalize abortions in the state. Under the proposed
statute, any healthcare professional who performs, attempts to
perform or assists in performing an abortion or attempted abortion
will face imprisonment and professional license suspension or
permanent license revocation. The statute does not contain any
exceptions to the felony abortion provision but does include the
following potential defenses a healthcare provider may use if
charged: (1) the abortion is performed because the physician
believes that it is necessary to prevent the pregnant woman’s
death; (2) the abortion was performed to provide the best
opportunity for the unborn child to survive; or (3) the pregnant
woman is a minor and the physician is provided a copy of a police
report that the pregnant woman reported the act of rape or incest
to law enforcement.

In the complaint, the DOJ describes this law as a
“near-absolute ban on abortion” that “would make it
a criminal offense for doctors to comply with EMTALA’s
requirement to provide stabilizing treatment” where a doctor
determines that abortion is the medical treatment necessary to
prevent a patient from suffering severe health risks. The DOJ’s
complaint highlights that the statute’s use of
“affirmative defenses” as opposed to
“exceptions” means that no physician who performs an
abortion will be protected from potential arrest or criminal
prosecution even when they act within one of the three types of
situations described as “defenses.” The DOJ argues that
the incredible burden of having to affirmatively defend themselves
will chill physicians from performing any abortions even when the
life of the mother is at serious risk or when a minor is the victim
of rape, and such chilling effect will lead to physicians failing
to provide emergency care to pregnant women as required by

Accordingly, the DOJ is asking the federal district court to
declare the Idaho law is invalid under the supremacy clause of the
U.S. Constitution and is preempted by federal law to the extent it
conflicts with EMTALA. If successful, the DOJ’s suit would
prevent the state statute from taking effect.

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